By Paul Anderson, of The Klamann Law Firm
As the NCAA tries to fend off a tidal wave of litigation, its legal defense is quickly eroding. In the latest blow to the NCAA, a trial court in Pennsylvania ruled that the NCAA must face a trial over its alleged failure to protect the health and safety of student athletes.
The case arises from a lawsuit filed by former college football player, Matt Onyshko, who played at the California University of Pennsylvania between 1999 and 2003. He was diagnosed with amyotrophic lateral sclerosis (“ALS”) in 2008. In 2013, he filed a claim against NCAA asserting that the NCAA failed to “adequately supervise, regulate, and minimize the risk of long-term brain injury.”
The NCAA, as it has done repeatedly in litigation, claimed that it did not “owe a legal duty” to protect the health and safety of student athletes. Instead, the NCAA claimed, this duty resides with the member schools. The NCAA doubled down on this assertion and even stated that it “lacks the enforcement mechanisms to implement legislation over its member institutions.”
Flatly rejecting this, the Court stated:
This argument also lacks merit because the NCAA is the supreme regulatory body in college athletics with the stated purpose of ‘hav[ing] a clear moral obligation to make sure we do everything we can to protect and support student-athletes.’
Notably, this “stated purpose” was a quote directly from the NCAA’s President, Mark Emmert, during a congressional hearing where he was grilled by Senator Jay Rockefeller for the NCAA’s tone-deaf response to the Derek Sheely lawsuit. The landmark Sheely lawsuit against the NCAA and other defendants was subsequently settled for $1.2 million.
The Court also rejected the NCAA’s no-duty argument based on “inherent risks” in football. The NCAA often relies on this argument to assert that it has no duty to protect against inherent risks in sports. And since a concussion is an “inherent risk” in football, so the argument goes, the NCAA owes no duty to protect against this risk.
But the Court found that “this argument lacks merit because it oversimplifies and conflates the risk of injury with the negligent treatment, management and prevention of such injuries. While suffering a head injury in the course of playing football is likely a danger inherent to the sport, the negligent treatment and management of such injuries, leading to severe long term damage is beyond the scope of the inherent risk assumed by players.”
This reasoning is consistent with Judge David Boynton’s ruling in the Sheely lawsuit, where that court also denied the NCAA’s motion for summary judgment.
Finally, the Court rejected the NCAA’s statute of limitations argument, which asserted that Onyshko’s claim was barred by the two-year statute of limitation because he last sustained injuries in 2003, but did not file his claim until ten years later. The Court found that the discovery rule tolled the statute of limitations because Onyshko did not know his ALS diagnosis was the result of repetitive brain trauma and the NCAA’s negligence. Onyshko did not become aware of this connection until he “saw a segment on TV regarding Steve Gleason.” The Court found this at least creates a factual issue that the jury must decide.
At bottom, this ruling sets the stage for a jury trial. A jury will be asked to determine, inter alia, if the NCAA breached its duty owed to Onyshko and whether its alleged failure contributed to cause Onyshko’s brain damage. Some evidence that Onyshko put forth in opposing the motion for summary judgment was an admission by his team’s head athletic trainer that “he was not provided, directly or indirectly, [with] any return-to-play guidelines or a concussion management policy from the NCAA.” In response, the NCAA hired an expert, Dr. Robert Harbaugh, who opined that the NCAA “did not in any way violate any standards.” The Court found that this is a factual dispute that must be resolved by the jury.
A trial date has not yet been set, but the heat is surely on the NCAA.
The full decision by the Court can be found here: Onyshko v. NCAA — Opinion and Order
